Debra Vitagliano
By Dan Murphy
In June of 2022, the Westchester County Board of Legislators passed the Reproductive Health Care Facilities Access Act, which was designed to” protect health care workers and patients seeking medical treatment from being obstructed from entering or exiting a reproductive health care facility and from harassing behavior from persons within specific distances of the premises. It enacts a 25-foot no-harassment zone around the facility’s perimeter and establishes the designation of an 8-foot personal space bubble surrounding the person within 100 feet of the facility,” according to a release from the BOL.
The law passed by a 15-2 vote and was signed into law by County Executive George Latimer. One of the no votes on the act was Legislator James Nolan, who said at the time, “Tonight, I voted no on the Reproductive Health Care Facilities Access Act. I voted no because I think this bill won’t meet the test put forward in the 2014 U.S. Supreme Court Decision McCullen v Coakley and that this bill sets an unfair burden on protestors’ right to free speech. In the long run, I think that passing this law will ultimately cost Westchester County millions of dollars trying to defend this unconstitutional law in Court. We are elected to not only represent our constituents but also to defend the United States Constitution.”
Nolan’s predictions seem to be coming true, as the case of Vitagliano v County of Westchester makes its way through the Federal courts. Westchester resident and “Catholic sidewalk counselor” Debra Vitagliano has filed suit against Westchester County, claiming that her First Amendment rights were violated with the passage of the access law, and specifically the 8-foot bubble.
On June 21, the United States Court of Appeals ruled in Vitagliano v Westchester County that the Reproductive Health Care Facilities Access Act was valid based on Hill v Colorado, a 2000 case. In Hill, the United State Supreme Court ruled 6-3, that the First Amendment right to free speech was not violated by a Colorado law that limited protest within 8 feet of a person entering a health care facility. The court found that Hill v Colorado was not a regulation of speech but a “regulation of the places where some speech may occur.”
But the same court also held that Vitagliano could ask the Supreme Court to reconsider Hill v. Colorado (2000). “Vitagliano contends that the County’s bubble zone law is a content-based restriction on speech that cannot survive strict or intermediate scrutiny….Vitagliano has standing to seek preenforcement relief because she has pleaded sufficient facts to support a credible threat that Westchester County will enforce the bubble zone law if she pursues her stated intention to engage in sidewalk counseling.”
Now that the US Supreme Court has 8 new members from when the 2000 Hill v Colorado decision was reached (only Justice Clarence Thomas remains) Vitagliano’s case could provide an opportunity for the new majority on the Court to overturn Hill v. Colorado, provided they agree to take the case. Legal scholars have criticized Hill, and in 2022 five Justices of the Supreme Court stated that Hill “distorted First Amendment doctrines.”
“My faith calls me to offer help to pregnant women considering abortion. In her most vulnerable state, a woman considering an abortion needs to know that she is loved and that there are other options for her and her child. I am hopeful that the Supreme Court will hear my plea and allow me to help these women,” said Vitagliano.
“Americans like Debra have every right to engage in peaceful, face-to-face conversations with women in need on public sidewalks,” said Mark Rienzi, president and CEO at Becket, the law firm representing Vitagliano. “Nobody should have to risk jail time and go to court for a peaceful conversation on public sidewalks—even when local government disagrees with them. We are hopeful that the Court will take this case and protect Debra’s ability to serve women in need.”
As Vitagliano’s case proceeds through the Federal courts, the Westchester County Board of Legislators held a public hearing on Aug. 1 to discuss amendments to the act, and specifically removing the 8 foot bubble zone. No vote was taken at the hearing but a vote is planned before the case goes to the US Supreme Court.
Motivated by her Catholic faith and experience as an occupational therapist for children with disabilities, Debra Vitagliano has been called to offer compassionate, face-to-face support to women considering abortion. Two years ago, Debra began participating in a prayer vigil at the Planned Parenthood in White Plains. As part of her vigil, Debra engaged in peaceful prayer and held signs about the impacts of abortion on both expecting mothers and fathers. During this time, Debra trained to volunteer as a counselor to abortion-vulnerable women. She views this ministry as a final attempt to turn pregnant women away from abortion and to save the lives of unborn children.
Debra Vitagliano is a devout Catholic and an occupational therapist. For over 40 years, she has lived out her vocation by working with children diagnosed with various physical and neurological disabilities, including severe disabilities. Debra’s work with special needs children has led her to see the inherent worth of each person, no matter their level of functioning. Just before Debra started sidewalk counseling, Westchester County passed the Reproductive Health Care Facilities Access Act.
The argument against the county law is that the First Amendment protects the right to a free and peaceful exchange of ideas, which includes an individual’s ability to have personal conversations about matters of public concern in public places, and that the law harms both men and women by depriving them of peaceful offers to help.
According to attorneys from Becket, county legislators were warned about “serious legal concerns” during hearing held last year, “but they passed it anyway. The gambit the county is apparently considering now should not and likely will not work. But it’s clear that they are afraid of our case, and scared of what will happen in the US Supreme Court,” said Becket attorney Joe Davis, who added that Westchester County will still have to answer for spending 1 year enforcing this law, and account for damages for past harm. “They can’t erase that, and they can’t show that they won’t break the law again going forward.”
If the Court agrees to hear the case in the next few months, it will be in the Oct. 2023 term, which lasts until June 2024. Four or more justices are required to sign off on hearing the case.
